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People v. Fernandez

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 24, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JOSE FERNANDEZ, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (A. Kirke Bartley, J. at suppression hearing; Gregory Carro, J. at plea and sentence), rendered February 27, 2008, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Saxe, J.P., Friedman, Sweeny, Renwick, Freedman, JJ.

1953/07

The court properly denied defendant's suppression motion. We perceive no basis to overturn the hearing court's findings crediting the officer's testimony (see People v Prochilo, 41 NY2d 759, 761 [1977]). The officer, who had extensive experience involving gravity knives, observed the top of a shiny metal knife sticking out of defendant's pants pocket, attached with a clip. According to the officer's testimony, an object bearing this combination of characteristics is at least likely to be a gravity knife, even if the knife's illegal status cannot be determined without testing it. Therefore, we conclude the officer had, at least, reasonable suspicion to believe that defendant possessed an illegal weapon (see People v Snovitch, 56 AD3d 328 [2008]; People v Carter, 49 AD3d 377 [2008], lv denied 10 NY3d 860 [2008]). Being reasonably concerned for his safety, he properly secured the knife by removing it from defendant's pocket (see People v Batista, 88 NY2d 650, 654 [1996]; People v Benjamin, 51 NY2d 267, 271 [1980]). Patting down defendant's pocket would have served no useful purpose, since the knife was visible and a patdown would have revealed what the officer already knew.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090324

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